Whether the Department was justified in deciding that it had released all relevant records coming within the scope of the applicant's request for records relating to certain briefing material concerning school transport services and in deciding that no further relevant records exist or can be found

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 5 January 2015, the applicant made a request to the Department for certain records relating to a document that he stated had been altered by the removal of the words "original agreement" when annexed to briefing material provided to the Department of Transport, Tourism and Sport. Specifically he sought access to the following:

All versions of a document described as "Briefing note given to the Public Accounts Committee by the Department of Education and Skills in correspondence dated the 18th November 2011 relating to issues raised by Coach Tourism Transport Council of Ireland".
All versions of the documents with the title "Annex 1: Briefing note given to the Public Accounts Committee by the Department of Education and Skills in correspondence dated the 18th November 2011 relating to issues raised by Coach Tourism Transport Council of Ireland"

Any documents that showed the identity of all persons who prepared the documents at 1 and 2 above, who removed the words "original agreement" from one of the documents, who knew that it was altered, and who approved of the alteration.

On 30 January 2015, the Department issued a decision granting his request. It identified 12 records relating to the applicant's request, which it released in full. On 3 February 2015, the applicant sought an internal review of the Department's decision, seeking clarification on a number of issues that arose from his examination of the records released. The Department's internal review decision, which issued on 24 February 2015, upheld the original decision. On 25 February 2015, the applicant applied to this Office for a review of the Department's decision.

During the course of this review, Ms Sandra Murdiff, Investigating Officer, contacted the applicant and provided him with details of clarifications received from the Department relating to his queries. She informed the applicant of her view that the Department was justified in deciding that no further relevant records exist or can be found and she invited him to withdraw his appeal, or to make further submissions if he wished before a decision was made. The applicant chose not to reply. Accordingly I have decided to conclude this review by way of a formal binding decision.

In conducting this review I have had regard to the Department's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Department, and to the provisions of the FOI Act. I have also had regard to the contents of the records that were released to the applicant, copies of which were provided to this Office for the purposes of this review.

Scope of Review

This review is solely concerned with whether the Department was justified in deciding that no further relevant records relating to the applicant's request exist or can be found.

Preliminary Matter

The applicant has raised a number of concerns about the manner in which the Department processed his FOI request. It is important to note that this review has been conducted under section 22(2) of the Act and cannot therefore be extended into a wider investigation into how the FOI request was handled by the Department. Such an investigation, were it to take place, could only be initiated by the Commissioner under section 44(2) of the Act.

Analysis and Findings

I note from the records released to the applicant that the Department wrote to the Public Accounts Committee (PAC) on 18 November 2011 enclosing a note on issues raised concerning the provision of school transport services. The note enclosed is a copy of the briefing note that the applicant sought at part 1 of his request. Subsequently, it appears that the Department provided the Department of Transport, Tourism and Sport with briefing material in May 2012 to enable that Department to provide a response to PAC on further related issues raised. It appears that the Department included in the briefing materials details of the response that issued to PAC on 18 November 2011. The various versions of the briefing material released suggest that there was a small change of text in the details of the response as provided in 2012. The note of 18 November 2011 contains the phrase "[w]hile the scheme has evolved since 1975 it continues to operate under the original agreement..." while the text included in a number of the versions of the briefing material as released in response to part 2 of the applicant's request includes the phrase "[w]hile the scheme has evolved since 1975 it continues to be operated as required by the Department...".

At part 3 of his FOI request, the applicant is essentially seeking to establish who created the various documents to which he sought access at parts 1 and 2, who changed the wording of the text and who knew about and approved that change. As the applicant is no doubt aware, the FOI Act confers a general right of access to records rather than a general right of access to information. This means that if the information sought is not contained in a record held by the public body, the FOI Act is unlikely to prove a satisfactory mechanism for acquiring the relevant information as it does not oblige public bodies to create or compile information which does not exist. Accordingly, the question I must consider is whether the Department was justified in deciding that no further records containing the information sought exist or can be found.

Section 15(1)(a)
As the Department indicated that it could not locate any further records relating to the applicant's request, section 15(1)(a) of the FOI Act is relevant. That section provides that a request for access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002] No. 18 MCA.

I note that Ms Murdiff contacted the Department and requested details of the steps taken to locate records relating to the applicant's request. The Department provided details of its records management practices, as well as the searches undertaken to locate all relevant records. The Department stated that this included manual searches of relevant files in the School Transport Section, as well as electronic searches of files, which included files where such records might be. The Department stated that it was very unlikely that files were held elsewhere, but that it contacted the Secretary General's Office in this regard. It also stated that no further files were located.

I note that the applicant sought clarification on a number of matters relating to the records released and that Ms Murdiff informed him of the details of the Department's responses to those matters. The Department's position is that all records relating to the applicant's request have been identified and released to him. It states that all versions of the records requested at 1 and 2 above have been released. In relation to part 3 of the request, the Department states that the records released are the only relevant records it holds. While I note that the applicant believes that further records should exist relating to the redrafting of the briefing notes, no evidence has been presented to this Office to support that view.

Having considered the submissions of both parties and the measures taken to locate further records, I am satisfied that the Department has taken all reasonable steps to locate all relevant records and that it was justified in deciding that no further relevant records exist or can be found. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014 I hereby affirm the Department's decision to refuse access to further relevant records under section 15(1)(a) of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator